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Lidey v. Workers' Compensation Appeal Board (Tropical Amusements, Inc.)

Commonwealth Court of Pennsylvania

March 17, 2017

Archie Lidey III, Petitioner
v.
Workers' Compensation Appeal Board (Tropical Amusements, Inc.), Respondent

          Submitted: December 2, 2016

          BEFORE: HONORABLE P. KEVIN BROBSON, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

          OPINION

          P. KEVIN BROBSON, Judge.

         Petitioner Archie Lidey III (Claimant) petitions for review of an order of the Workers' Compensation Appeal Board (Board). The Board affirmed, as modified, the decision of a Workers' Compensation Judge (WCJ), granting Claimant's petition to review compensation benefits. We now reverse.

         Claimant sustained an injury in the nature of a right arm fracture/crush injury while in the course and scope of his employment with Tropical Amusements, Inc. (Employer) on August 4, 2013. (Reproduced Record (R.R.) at 98a.) Employer accepted liability for Claimant's work-related injury pursuant to a Notice of Compensation Payable, dated August 12, 2013. (Id. at 98a-99a.) The Notice of Compensation Payable and accompanying Statement of Wages reflected an average weekly wage (AWW) of $640.00, and a weekly compensation rate of $458.50. (Id. at 94a, 98a.) Thereafter, on September 15, 2014, Claimant filed a petition to review compensation benefits, alleging that Employer had improperly calculated his AWW and weekly compensation rate. (Id. at 1a-4a.)

         Before the WCJ, Claimant testified that on August 4, 2013, he was assembling a carnival ride at the Greene County Fair, when the ride malfunctioned, causing the car/trolley to come down onto his right arm and pin his right arm between the ride's main support/tower and the car/trolley. (Supplemental Reproduced Record (Supp. R.R.) at 13b.) Claimant initially treated for his work-related injury at Ruby Memorial Hospital in Morgantown, West Virginia, where he underwent five or six surgeries on his right arm over a period of approximately ten to twelve days and was treated in the intensive care unit. (Id. at 20b-21b.) Since that time, Claimant has undergone two additional surgeries on his right arm. (Id. at 21b.) Claimant explained that he continues to treat for his work-related injury and that his doctors would like to perform additional surgeries, but he was currently being given some time to return to as much normal activity as possible for psychological reasons. (Id.)

         At the time of his August 4, 2013 work-related injury, Claimant was working as a manager/fabricator for Employer, a family-owned business that provides amusement rides to fairs and carnivals. (Id. at 12b, 15b, 25b.) In this position, Claimant was responsible for Employer's day-to-day operations, contract negotiations, representing Employer at conventions and trade shows, buying and selling equipment, and assembling, disassembling, and repairing rides. (Id. at 15b-16b, 25b-26b.) Claimant explained that he took on the management duties in addition to his regular fabricator duties in the winter of 2012/2013 after his grandfather passed away. (Id. at 15b, 26b-27b.) Before that time, Claimant had been learning the management duties from his grandfather since approximately 2008 or 2009. (Id. at 15b, 29b.) Claimant testified further that in 2012, he was paid $1, 000.00 per week from the first week in June through the last week of September. (Id. at 17b.) Claimant explained that in 2013, his weekly wages were increased from $1, 000.00 to $2, 000.00 in connection with his additional management duties. (Id. at 18b-19b.) Claimant explained further that prior to 2013, his employment duties stopped when the carnival season ended in September. (Id. at 19b.) After he took on the additional management duties, however, he was required to work through the winter months, attending conventions and trade shows, performing contract negotiations, buying and selling rides, and finding the best deals on ride parts. (Id.) Claimant testified that as a result of these wintertime employment duties, his weekly wages of $2, 000.00 were supposed to continue beyond the 2013 carnival season. (Id. at 19b-20b.) Claimant stated further that had he not been injured, he would have expected his weekly pay to continue through the end of 2013 and into 2014. (Id. at 20b.) Claimant returned to work for Employer in a light-duty capacity in June 2014, performing tasks such as "catch drops" and monitoring ticket booths. (Id. at 21b-22b.) Claimant continues to work for Employer in a light-duty capacity and is able to perform additional duties as the condition of his arm improves. (Id. at 22b.)

         Employer presented the testimony of Rebecca Lidey, Employer's president and Claimant's mother. (Id. at 39b, 41b.) Ms. Lidey testified that Employer is in the business of providing amusement rides for Pennsylvania carnivals from May through September of each year. (Id. at 40b-41b.) Employer has a summertime office located in Scottsdale, Pennsylvania, where it stores its equipment during the winter months, and a wintertime office located in Riverview, Florida, where it is incorporated. (Id. at 40b-41b.) Ms. Lidey confirmed that Claimant worked for Employer as a fabricator in 2012, and Employer paid Claimant $1, 000.00 per week. (Id. at 41b-42b.) Ms. Lidey also confirmed that Claimant took over some administrative duties after his grandfather passed away in 2012. (Id. at 42b.) Ms. Lidey explained, however, that Claimant was not paid to attend conventions on behalf of Employer during the winter months and received money only when he sold equipment for Employer. (Id. at 42b-43b.) Ms. Lidey stated that Claimant was "just helping the [family] business" by attending these conventions and performing other duties in the wintertime. (Id. at 44b-45b.) Ms. Lidey also admitted that Claimant was paid $2, 000.00 per week beginning in 2013. (Id. at 45b.) Ms. Lidey explained, however, that while she and Claimant had discussed the possibility of Claimant receiving $2, 000.00 per week during the entire year, Employer had not agreed to that arrangement prior to Claimant's August 4, 2013 work-related injury. (Id. at 43b.) Ms. Lidey testified further that no employee received any wages during the winter months at the time of Claimant's August 4, 2013 work-related injury, but that this changed in 2014, when Employer began paying Archie Lidey, Jr. and Claimant throughout the winter months. (Id. at 46b-47b.)

         On June 26, 2015, the WCJ issued a decision, granting Claimant's petition to review compensation benefits.[1] In so doing, the WCJ concluded: (1) Employer improperly calculated Claimant's time of injury AWW as a seasonal employee under Section 309(e) of the Workers' Compensation Act (Act);[2] and (2) pursuant to Section 309(a) of the Act, [3] Claimant's time of injury AWW was $2, 000.00, which resulted in a weekly compensation rate of $917.00.

         Employer appealed to the Board, arguing that the WCJ erred in concluding that Claimant was improperly classified as a seasonal employee, that Employer had improperly calculated Claimant's AWW, and that Claimant's correct AWW was $2, 000.00. By decision dated April 13, 2016, the Board affirmed the WCJ's decision granting Claimant's petition to review compensation benefits, but modified Claimant's AWW to $717.95. In so doing, the Board determined: (1) the WCJ properly concluded that Claimant was not a seasonal employee; (2) the WCJ's calculation of Claimant's AWW under Section 309(a) of the Act "artificially inflated Claimant's compensation rate in comparison to his pre-injury earning experience;" and (3) the WCJ should have utilized Section 309(d) of the Act to calculate Claimant's AWW because it "is a more accurate reflection of Claimant's economic reality." (Board's Op. at 6-7.) Claimant then petitioned this Court for review.

         On appeal, [4] Claimant argues that the Board committed an error of law when it applied Section 309(d) of the Act and modified his AWW to $717.95. More specifically, Claimant argues that by applying Section 309(d) of the Act, the Board ignored the clear and unambiguous language of both Section 309(a) and Section 309(d) of the Act because Section 309(d) should have been utilized to calculate his AWW only if Sections 309(a), 309(b), or 309(c) did not apply. In support of his position, Claimant argues further that the uncontradicted and credible testimony of both Claimant and Ms. Lidey[5] established that at the time of Claimant's August 4, 2013 work-related injury, Claimant's wages were fixed by the week at $2, 000.00, and, therefore, Section 309(a) of the Act should have been utilized to calculate his AWW.

         In response, Employer argues that the Board properly applied Section 309(d) of the Act and modified Claimant's AWW to $717.95, because Claimant's pre-injury wages were not fixed by the week-i.e., Claimant was continuously employed by Employer for the fifty-two weeks prior to his August 4, 2013 work-related injury, but he was only paid by the week during the carnival season and he performed various administrative duties in the winter months without pay.

Section 309 of the Act[6] provides in pertinent part:
Wherever in this article the term "wages" is used, it shall be construed to mean the [AWW] of the employe, ...

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